The picture on the left is of a ParaGolfer – a mobility device that helps the disabled user stand up to play golf or engage in other sporting activities. The base price is around $34,000, and a pair of recent decisions from California, Nevarez v. Sumavision SFO LLC, 2018 WL 827969 (N.D. Cal. Feb. 12, 2018) and Nevarez v. Canyon Lakes Golf Course & Brewery LLC, 2017 WL 5479649 (N.D. Cal. Nov. 15, 2017) suggest that every golf course in America may be legally obligated to buy one or more of them. These decisions raise an important question about the interaction of preference, necessity and equality in providing equal access for the disabled. The cases were wrongly decided based on sloppy reasoning, but before discussing the law let’s take a look at golf cart technology. More

Sanzaro v. Ardiente Homeowners Ass. et al, 2:11-cv-01143-RFB, 2017 WL 5895133 (D. Nevada June 29, 2017) asks whether the clubhouse in a planned development is a “dwelling” for purposes of the Fair Housing Act. The Court doesn’t answer the question, but is one worth thinking about when trying to decide how the idea of disability discrimination applies to common areas in any kind of housing development or apartment complex.

The Fair Housing Act itself has a somewhat confusing definition of dwelling. A “dwelling” is:

any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof. More

Apartment owners and managers are familiar with the internet industry providing junk disability letters for pet owners. You only have to go to the web to find a dozen or more places that will sell a letter from some kind of alleged therapist certifying that you are disabled and your pet cat, koala or kangaroo is a necessary emotional support animal. Many owners and managers feel helpless when confronted by these letters. After all, organizations like the National Apartment Association warn owners and managers:

“do not ask for details about the resident’s disability” and

“documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.”

These organizations agree that you can verify the authenticity of the letter and signature on a third party letter, but say that you “may not ask for additional information about the disability.”*

We think this advice is wrong. You can fight back against bogus requests for Emotional Support Animals. We will be presenting a free webinar with all the details at noon Central Standard Time on April 15, 2016 and at noon Central Standard Time on April 20, 2016.

In the meantime, here are the basics of why the conventional wisdom is wrong.

First, HUD specifically recognizes that apartment owners and managers are entitled to “reliable documentation” when the disability and need are not apparent. A typical letter from an internet vendor is not reliable on its face because the diagnostic tools used by these vendors do not appear to conform to acceptable medical practice. Nothing in the Fair Housing Act requires that apartment owners and managers grant reasonable accommodations based on letters that have no scientific or medical support.

Second, part of making sure a letter is reliable is confirming not only that it is authentic, but that the author is qualified to make the diagnosis of disability. A string of letters after someone’s name does not mean they are qualified to determine if someone is mentally ill. We don’t let podiatrists diagnose heart disease, and there is no reason to think a marriage and family counselor is qualified to diagnose acute anxiety disorder. Given the already dubious nature of these internet businesses demanding credentials is only reasonable.

Third, you are entitled to ask about the nature of a non-obvious disability because you cannot evaluate a request for reasonable accommodation unless you know what the disability is and how it relates to the particular accommodation requested. As one court says, a request for reasonable accommodation cannot be analyzed except by “by examining the facts and circumstances surrounding [the tenant’s] particular impairment.” (emphasis added). A letter that merely says the tenant has a “mental impairment” is not sufficient because for some mental impairments there is no reason to think an ESA is needed for their use and enjoyment of the apartment they rent.

Finally, you are entitled to know whether the tenant or resident meets the statutory definition of disability. Courts have recognized that not all mental impairments are disabling, and there is no single statutory or medical definition of “handicap” or “disability.” The fact that a letter says the tenant is “disabled” or “handicapped” is not enough to evaluate a reasonable accommodation request because you can’t tell what definition the doctor or therapist used. It it is reasonable to ask that the doctor or therapist certify that the patient meets the statutory definition of handicap under the Fair Housing Act.

Exploitation of the disabilities laws shows a lack of character, but being morally handicapped is not protected by the Fair Housing Act. We don’t believe Congress or HUD intended to create an industry based on shoddy medical practices, and while there are important limits on what you can do, we think in most cases apartment owners and managers can fight junk ESA letters.** Sign up for our webinar on April 15 and April 20 to find out how.

* These quotes are taken from the NAA Emotional Support Animal Toolkit, but I should make it clear that these represent the conventional wisdom found in materials from many Fair Housing Act trainers and lawyers who practice in the field. They represent a cautious approach that makes sense for good faith requests for accommodation, but not for obviously purchased letters.

** Naturally, every individual situation is different, and you should always consult an attorney or well designed policy and procedure before responding to or refusing a reasonable accommodation request, no matter how dubious it appears. Always remember that suspicion justifies asking questions; it does not justify an outright refusal to accommodate.

Special thanks to Professor Jeffrey N. Younggren of the University of Missouri, who advised me on medical issues in this blog, and to Cassie Bonness, co-author with Professor Younggren of a soon to be published paper on the standards of practice for psychologists and therapists asked to provide ESA letters.

CityVision Services, Inc. has recently filed a number of complaints with HUD under the Fair Housing Act. Those I am familiar with all follow the same pattern. Someone from CityVision calls an apartment complex asking about pet deposit policies and then mentions a therapy animal. The manager or leasing agent makes the mistake of saying all animals require a pet deposit. No one ever comes to the complex or makes a rental application, but CityVision files a Fair Housing complaint on its own behalf as a “tester.” The apartment owners I’ve spoken with were all located in East Texas, but the extent of this particular effort by CityVision Services is impossible to tell because HUD complaints are not public. More

One of the many ADA risks that businesses face is the risk of sliding into non-compliance through maintenance failures. This seems to come up most often in the context of parking, because the markings required for accessible parking are exposed to the weather and to wear from car tires. I recently settled a case of this type, and a reported opinion from California was a reminder of how important maintenance can be.

In Lozano v. C.A. Martinez Family Ltd. P’ship, 2015 WL 5227869, at *4 (S.D. Cal. Sept. 8, 2015), the complaint concerned nothing more complicated than striping accessible parking. The paint had faded and on repeated occasions over months the access aisles were blocked. As soon as the lawsuit was filed the owner repainted, but that was too late for the Court, which found that a policy of re-striping that apparently had not been followed would not let the owner escape an injunction and, of course, paying fees to the plaintiff’s attorney. More